Planned Parenthood Response

Case 2:15-cv-00693-CW Document 22 Filed 10/13/15 Page 1 of 47

Peggy A. Tomsic (3879)
[email protected]
Christine T. Greenwood (8187)
[email protected]
Jennifer Fraser Parrish (11207)
[email protected]
MAGLEBY & GREENWOOD, P.C.
170 South Main Street, Suite 1100
Salt Lake City, Utah 84101-3605
Telephone: 801.359.9000
Facsimile: 801.359.9011
Attorneys for Plaintiff Planned Parenthood
Association of Utah
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
PLANNED PARENTHOOD
ASSOCIATION OF UTAH, a Utah nonprofit corporation,

REPLY IN SUPPORT OF MOTION FOR
A PRELIMINARY INJUNCTION ORDER

Plaintiff,
v.
GARY R. HERBERT, in his official
capacity as Governor of THE STATE OF
UTAH; and JOSEPH K. MINER, M.D., in
his official capacity as the Executive
Director of THE UTAH DEPARTMENT
OF HEALTH, a department of the
government of THE STATE OF UTAH,
Defendants.

Case No.

2:15-CV-00693-CW

Honorable

Clark Waddoups

Plaintiff Planned Parenthood Association of Utah (“Plaintiff” or “PPAU”), through
its counsel of record, hereby submits this Reply in Support of Motion for a Preliminary
Injunction Order.

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TABLE OF CONTENTS
Page

INTRODUCTION AND STATEMENT OF ADDITIONAL FACTS .................................... v
ARGUMENT .................................................................................................................... 1
I.

PLAINTIFF NEED NOT PROVE EACH ELEMENT NECESSARY FOR
ISSUANCE OF A PRELIMINARY INJUNCTION “CLEARLY AND
UNEQUIVOCALLY” .............................................................................................. 1

II.

PLAINTIFF IS LIKELY TO PREVAIL ON ITS CLAIMS ......................................... 2
A.

B.

PPAU’s Equal Protection Claim Is Likely to Succeed on the Merits ........... 2
1.

Class-of-One Equal Protection Claims Have Succeeded in
Cases with Similar Facts After Engquist ......................................... 2

2.

Neither the Supreme Court Nor the Tenth Circuit Has
Extended Engquist to Cases Involving Government
Contractors ..................................................................................... 6

3.

Engquist’s Rationale Does Not Apply Here, Nor Does It
Justify Extending Engquist Beyond Its Core Holding ...................... 8

4.

PPAU Has Identified Differently-Treated, Similarly Situated
Contractors ................................................................................... 12

5.

The State’s Action Was Not Justified by Any Compelling
Interest or Rational Basis .............................................................. 15

PPAU Has Demonstrated a Likelihood of Success on the Merits of
Its Unconstitutional Conditions Claims ..................................................... 18

III.

PLAINTIFF AND ITS PATIENTS WILL SUFFER IRREPARABLE HARM
IN THE ABSENCE OF AN INJUNCTION ........................................................... 25

IV.

THE THREATENED INJURY TO PLAINTIFF FAR OUTWEIGHS ANY
INJURY TO THE STATE .................................................................................... 29

V.

THE INJUNCTION WILL PROMOTE THE PUBLIC INTEREST......................... 29

CONCLUSION .............................................................................................................. 31

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TABLE OF AUTHORITIES
Page

Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006) ........................................... 1
Analytical Diagnostics Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010) ......................... 7
Andersen v. McCotter, 100 F.3d 723 (10th Cir. 1996) ............................................. 20, 21
Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668 (1996)................................................... 16
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .......................................................... 19
Caesars Mass. Mgmt. Co. v. Crosby, 778 F.3d 327 (1st Cir. 2015) ............................ 7, 9
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008) ............................ 7, 9
Dubay v. Wells, 506 F.3d 422 (6th Cir. 2007) ............................................................... 15
E. Amherst Plumbing, Inc. v. Thompson, No. 12-CV-0195A, 2013 WL 5442263
(W.D.N.Y. Sept. 27, 2013) ......................................................................................... 10
Elrod v. Burns, 427 U.S. 347 (1976).............................................................................. 26
Engquist v. Oregon Department of Agriculture, 552 U.S. 591 (2008) ..................... passim
Fed. Lands Legal Consortium v. U.S., 195 F.3d 1190 (10th Cir. 1999) ........................... 1
Flood v. ClearOne Communications, Inc., 618 F.3d 1110 (10th Cir. 2010) ..................... 1
Garcetti v. Ceballos, 547 U.S. 410 (2006) ..................................................................... 20
Glover v. Mabrey, 384 Fed. Appx. 763 (10th Cir. 2010) .................................................. 7
Hanes v. Zurick, 578 F.3d 491 (7th Cir. 2009) .................................................... 7, 11, 12
Heusser v. Hale, 777 F. Supp. 2d 366 (D. Conn. 2011) ................................................ 10

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In re BRCA1-, BRCA2-Based Hereditary Cancer Test Patent Litig., 3 F. Supp. 3d 1213
(D. Utah 2014) ........................................................................................................... 28
Intralot, Inc. v. McCaffrey, No. 1:11-cv-08046, 2012 WL 4361451 (N.D. Ill. Sept. 21,
2012) ......................................................................................................................... 10
Jav Auto Ctr., Inc. v. Behrens, No. 05 CIV. 6503(CS)(GAY), 2008 WL 9392107
(S.D.N.Y. Oct. 8, 2008) .............................................................................................. 10
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011) ...... 12, 13, 14, 15
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ................................................... 1, 26
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) ....................................................... 16
Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct. 2277 (2012) .................... 18
Mountain Cascade, Inc. v. City, No. C-13-03702 DMR, 2013 WL 6069010 (N.D. Cal.
Nov. 18, 2013) ........................................................................................................... 10
NRP Holdings, LLC v. City, No. 11-CV-472S, 2012 WL 2873899 (W.D.N.Y. July 12,
2012) ......................................................................................................................... 10
O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) .............................. 21
Pickering v. Board of Ed. of Township High Sch. Dist. 205, 391 U.S. 563 (1968) ......... 21
Pignanelli v. Pueblo School Dist. No. 60, 540 F.3d 1213 (10th Cir. 2008) ...................... 7
Planned Parenthood Ass’n of Hidalgo County Tex., Inc. v. Suehs, 828 F. Supp. 2d 872
(W.D. Tex. 2012) ....................................................................................................... 19
Planned Parenthood Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724
(M.D. Tenn. 2012)............................................................................................... passim

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Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d 590 (W.D. Tex. 2003)
....................................................................................................................... 18, 19, 25
Planned Parenthood of Central N.C. v. Cansler, 877 F. Supp. 2d 310 (M.D.N.C. 2012)
............................................................................................................................ passim
Planned Parenthood of Kan. & Mid-Mo. v. Moser, 737 F.3d 814 (10th Cir. 2014) ........ 22
Planned Parenthood of Mid-Mo. & E. Kan. v. Dempsey, 167 F.3d 458 (8th Cir. 1999) . 19
Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013) ............. 19
Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380 (1st Cir. 1987) .............. 26
Reno v. Flores, 507 U.S. 292 (1993) ............................................................................. 16
Roberts v. United States Jaycees, 468 U.S. 609 (1984) ............................................... 18
Romer v. Evans, 517 U.S. 620 (1996)............................................................................. 4
SECSYS, LLC v. Vigil, 666. F.3d 678 (10th Cir. 2012) .................................................... 7
Seymour’s Boatyard, Inc. v. Town of Huntington, No. 08-CV-3248 (JG)(AKT), 2009 WL
1514610 (E.D.N.Y. June 1, 2009) .............................................................................. 10
Snodgrass-King Pediatric Dental Assocs. V. Dentaquest USA Insur., 79 F. Supp. 3d
753 (M.D. Tenn. 2015)............................................................................................... 10
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ....................................................... 4
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ......................................... 3, 10, 11

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INTRODUCTION
The Court should convert the temporary restraining order issued on September
29, 2015, into a preliminary injunction order to prevent the imminent and irreparable
harm resulting from the State’s violation of PPAU’s constitutional rights. PPAU is
entitled to such relief because it has established that the requisite four factors required
for such relief under Rule 65 of the Federal Rules of Civil Procedure weigh in its favor,
and do so decidedly.
STATEMENT OF ADDITIONAL FACTS
The State does not dispute, and has conceded for purposes of this motion, the
facts previously set forth in the Declaration of Karrie Galloway (“Galloway Decl.”), which
include:

The statements made by Governor Herbert to the public related to
his Directive, including that the Directive was issued in response to the
videos released by an anti-abortion organization opposed to the national
organization of Planned Parenthood Federation of America (the “National
Organization”) (collectively, with its affiliates, “Planned Parenthood”) called
the Center for Medical Progress (the “CMP Videos”). Galloway Decl., ¶ 2.

While PPAU is an “affiliate” of the National Organization, PPAU is a
legally separate non- profit corporation organized under the laws of the
State of Utah. Id., ¶ 4.

PPAU has complied with all federal and state laws. None of
PPAU’s employees has appeared in any of the CMP Videos, and PPAU
does not, and has never, participated in any program to allow patients to
donate fetal tissue after an abortion. All abortion services provided by
PPAU are paid with private funds, and no state or federal money is used
to pay for these services, which are only a part of the total services
provided by PPAU to its patients. See id., ¶¶ 12-13.

The State does not contend that PPAU has engaged in any
misconduct, and Governor Herbert knew that PPAU had nothing to do with
the CMP Videos when he issued his Directive. The Governor also knew

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that the programs affected by his Directive were unrelated to abortion and
fetal tissue donation, but instead affect afterschool programs for teens
promoting abstinence and personal responsibility, STD testing for high-risk
populations, a partnership with UDOH to establish a statewide STD
surveillance network, and reimbursements for pregnancy and STD testing
for victims of rape or sexual assault. See id., ¶¶ 29-78.

PPAU’s long history of providing reproductive health services to
women, men, and teens of Utah, for nearly 50 years, including providing
education, health care, and testing to prevent unwanted pregnancies, to
prevent the spread of STDs, and to promote safe and healthy
relationships. See id., ¶¶ 5-14.

PPAU is the only statewide organization that provides reproductive
health services to all who request them. This is true regardless of a
patient’s health insurance status, or any other circumstance related to a
patient’s economic, ethnic, cultural, or demographic position in the state.
Id., ¶ 7.

PPAU’s long and successful relationship working with the State of
Utah, including more than two decades of receiving funds for federal
programs administered by the State. UDOH has consistently praised
PPAU for the services it provides, and at no time has UDOH complained
about those services. See Galloway Decl., ¶¶ 15-28.

In the more than two decades that the State of Utah has
administered funds for federal programs to PPAU, PPAU has been
accepted by UDOH for most, if not all, of the federal grants for which
PPAU was qualified and met all of the application requirements. In the
more than two decades that the State of Utah has administered funds for
federal programs to PPAU, grants with additional funds available after the
expiration of the original contract have been routinely renewed as a matter
of course by UDOH without any controversy or negotiation. In the two
decades that the State of Utah has administered funds for federal
programs to PPAU, PPAU has never received a notice of termination for
an existing contract with UDOH, until the recent notices following the
Governor’s Directive. In the two decades that the State of Utah has
administered funds for federal programs to PPAU, UDOH has never
refused to renew a contract with PPAU, until the recent refusal following
the Governor’s Directive. Id., ¶¶ 22-25.

Based on the long-standing collaboration between UDOH and
PPAU, UDOH would not have terminated or threatened not to renew its
existing contracts with PPAU, but for Governor Herbert’s Directive. Based
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on PPAU’s outstanding service to the community and its successful
partnership with UDOH since 1993, PPAU would have continued to be
approved for, and receive, federal funds administered by the State of
Utah, for programs for which PPAU is qualified, but for Governor Herbert’s
Directive. Id., ¶¶ 27-28.

Other service providers are not in the position to provide the
services for the programs affected by Governor Herbert’s Directive, or at
least cannot provide those services in a timely fashion, at no cost, and/or
in the same, successful way as the services are currently being provided
by PPAU. Accordingly, the State’s Action threatens to harm PPAU’s
ability to prevent unwanted pregnancies, and its ability to prevent high-risk
populations in Utah from acquiring and/or spreading potentially-life
threatening STDs. See id., ¶¶ 30-78.

The State’s Action also threatens to harm the reputation of PPAU
that it has built over the last 50 years in Utah, when PPAU has done
nothing wrong. Without its reputation, PPAU will no longer be able to
continue to function and serve the community as it has in the past. See
id., ¶¶ 79-84.
Since filing its motion, PPAU received additional evidence from the State through
document discovery from the State’s counsel of record and through a formal
Government Records Access and Management Act (“GRAMA”) request for documents
related to UDOH’s implementation of the Governor’s Directive. These documents, along
with certain articles recently published in the media, are submitted through the
Declarations attached hereto as Plaintiff’s Exhibit B (Declaration of Brandon J. Mark)
and Exhibit C (Declaration of Jennifer Fraser Parrish (“Parrish Decl.”)). These
documents show the following additional facts which support PPAU’s right to the
preliminary injunction it seeks:

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UDOH REPEATEDLY ADVISED THE GOVERNOR THAT CUTTING FUNDS TO
PPAU WOULD BE A BAD IDEA AND WOULD HURT THE CITIZENS OF UTAH
A week prior to the issuance of the Governor’s Directive, on August 7, 2015,
Robert Rolfs, the Deputy Director of UDOH, was informed by the Governor’s office that
“[t]here is a real risk that [UDOH] will be directed to cancel all funding to planned
parenthood.” Parrish Decl., Ex. 1. In response, Dr. Rolfs requested that UDOH
employees provide the Governor with “reasons why [the State] shouldn’t do that” and
“why [the State] can’t give the money to somebody else.” Id. (emphasis added).
The UDOH employees provided bullet points to Dr. Rolfs, indicating that the following
negative impacts, among others, would occur “without the partnership” between UDOH
and PPAU: (a) 4,400 patients would not be able to receive STD testing, leading to
“long-term health consequences such as pelvic inflammatory disease (PID) and
infertility;” (b) 3,725 individuals diagnosed with chlamydia/gonorrhea and their partners
would not receive treatment, “resulting in [] long-term health consequences;” (c)
valuable patient data related to pregnancy and treatment for STDs “will be less accurate
and less timely, in turn increasing the workload of local health department disease
intervention staff;” and (d) “Utah will not be able to participate in a CDC deemed
‘project of inherent national significance,’ which would hurt chances [of the State] of
future funding.” Id., Ex. 2 (emphasis added).
Four days after the Governor’s Directive was issued, on August 19, 2015, Dr.
Rolfs e-mailed the Governor’s staff, stating “there are areas of service where we can’t
avoid taking services away from women who would have been helped” by PPAU.
Id., Ex. 3 (emphasis added). That same day, UDOH employee Elizabeth Gerke eviii

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mailed a letter for the Governor from Dr. Rolfs, “summariz[ing] the complexities and
concerns that [UDOH employees] have with terminating funding” to PPAU. Id., Ex. 4. A
memorandum was created by UDOH employees showing the effect of the Governor’s
Directive, including the following negative consequences: (a) the State could not
identify a provider to continue the targeted STD testing formerly provided by PPAU in
St. George, Utah; (b) ending the partnership with PPAU for targeted STD testing would
result in an annual revenue loss of about $240,000 to the Utah Public Health
Laboratory; and (c) ending the Abstinence Education and PREP Programs with PPAU
would result in a “need to return the funds” to the federal government, because “PPAU
is the only provider in Utah certified to provide the particular curriculum [] use[d]”
and because “PPAU had established access with difficult to reach, high risk
populations and our program staff believe it is unlikely that within the remaining
year of funding another provider could establish relationships and access similar
to that of PPAU.” Id., Ex. 5 (emphasis added). With respect to the STD Surveillance
Project, UDOH employee Jon Reid identified that a negative consequence of cancelling
the program with PPAU would be that the State would lose “an additional year of
testing.” Id., Ex. 6.
On August 25, 2015, UDOH employee Cristie Chesler e-mailed Dr. Rolfs that
rerouting STD treatment from PPAU to local health departments would result in patients
being charged a $35 fee, “So free treatment would no longer be free any
longer . . . .” Parrish Decl., Ex. 7 (emphasis added). Ms. Chesler further discussed the

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fact that there is no one in the St. George area to cover the STD testing provided by
PPAU. Id.
On August 26, 2015, Dr. Rolfs e-mailed the Governor’s staff again, stating that
he had “ongoing concerns” about the Governor’s Directive, including that he did not
“believe that [UDOH] [could] arbitrarily restrict PP from being considered in an open
procurement” without potentially risking the State’s future ability to receive grants
from the federal government for services like the Abstinence Education and PREP
Programs. Id., Ex. 8 (emphasis added). He stated it could also cause problems related
to other grants as well, including those for STD, HIV, and hepatitis education. Id. He
stated that UDOH “really [doesn’t] have good alternatives for some of the services
PP is providing.” Id. (emphasis added). Finally, he stated his concern that “abruptly
terminating [PPAU’s funds] will harm people of Utah.” Id. (emphasis added). This,
he states, “isn’t acceptable to me.” Id. (emphasis added).
UDOH EMPLOYEES DID NOT WANT TO TERMINATE PPAU’S FUNDING,
WERE SEARCHING FOR WORK-AROUNDS, AND ONLY SENT THE TERMINATION
NOTICES BECAUSE THE GOVERNOR TOLD THEM TO
From the time UDOH was first informed that the Governor might defund PPAU, it
began looking into whether there might be a work-around to provide PPAU its funding.
See, e.g., Parrish Decl., Ex. 1 (Dr. Rolfs e-mailed UDOH employees on August 7, 2015:
“. . . [W]ould [it] be possible for Feds to fund them directly[?] . . . [W]e should be
exploring [].”).
A few days after the Governor’s Directive issued, on August 17, 2015, UDOH
employee Amanda Whipple e-mailed Penny Davies at PPAU, stating that she “wasn’t

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officially made aware of the situation [regarding the Governor’s Directive] until recently,”
and that UDOH valued working with PPAU and would “continue to explore options on
how to do that.” Id., Ex. 9. That same day, Ms. Whipple also sent an e-mail to
Elizabeth Torrone at the Centers for Disease Control (“CDC”), stating that the Governor
had still not communicated with UDOH regarding his Directive, but indicating that she
wanted to explore ways the State could work around the Governor’s Directive to get
funds to PPAU. See id., Ex. 10 (“[W]e wanted to see if there was a way to fund PPAU
directly through CDC and have them just report to us.”).1
Finally, the documents produced by the State show that UDOH only sent the
termination letters to PPAU because they were instructed to do so by the Governor. On
August 21, 2015, Dr. Rolfs told the Governor’s staff he did not intend to send the
termination letters to PPAU until he heard further from the Governor. See id., Ex. 3
(“We will hold off on sending the contract termination letters until we hear on Monday.”).
On August 31, 2015, UDOH employees exchanged e-mails stating that the letters of
termination to PPAU were ready, but they were waiting to hear from the Governor’s
office whether they should be sent, again evidencing that UDOH would not have sent
the letters, but for the instructions of the Governor. See id., Ex. 11 (“[Dr. Miner] said
sending the letters is on hold until they hear from the Governor’s office . . . .”); see also
Ex. 12 (“As an agency, we have been instructed [by the Governor] to terminate these
contracts.”).
1

According to the State-produced documents, no workaround solution has been

found.

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THE GOVERNOR DID NOT ATTEMPT TO ASSESS WHETHER THE SERVICES
PROVIDED BY PPAU COULD BE PROVIDED BY OTHERS UNTIL AFTER HE
ISSUED HIS DIRECTIVE; EVEN NOW, UDOH HAS NOT FIGURED OUT HOW THEY
COULD REDISTRIBUTE PPAU FUNDS
Almost two weeks after the Governor issued his Directive, on August 27, 2015,
UDOH employees were exploring -- for the first time -- whether there were clinics to
which patients could be re-routed from PPAU’s clinics, and whether there were other
providers to “possibly” replace PPAU. Parrish Decl., Exs. 13 & 14.
On September 9, 2015, Ms. Gerke e-mailed with administrators at the federal
government to inquire into whether the funds for the Abstinence Education and PREP
Programs for upcoming years would still be provided to the State if they were not going
to PPAU, or if the State would have to reapply for the funds. Id., Ex. 12. She was told
the State would have to reapply, and e-mailed other UDOH employees that “this makes
a new RFP completely unfeasible.” Id. (emphasis added).
On September 14, 2015, UDOH employees were e-mailing various groups to
assess their “level of interest” in attempting to take over PPAU’s educational programs.
Id., Ex. 15. No documents sent in response by interested groups were produced by the
State.
On September 18, 2015, UDOH employees had still not figured out how to
redistribute the PPAU funding. See Id., Ex. 16 (“[T]he issue still needing to be resolved
is which providers would be able to accept the funding . . . . So while the general
course of action is clear (redistributing the funding), the specifics on who receives what
still needs to be determined.”).

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THE GOVERNOR HAS IRRATIONALLY PUSHED FORWARD WITH HIS DIRECTIVE,
DESPITE NO FINDINGS OF WRONGDOING BY THE NATIONAL ORGANIZATION
OR ITS AFFILIATES, EVIDENCING THAT HIS DIRECTIVE WAS IN FACT ISSUED
FOR PERSONAL AND POLITICAL REASONS
As early as four days after the Governor’s Directive was issued, on August 18,
2015, UDOH employees were exchanging e-mails with news reports stating that the
videos at issue had sparked a “Witch Hunt” and were “deceptively edited.” Parrish
Decl., Ex. 17. The news reported that government investigations completed at that time
had not found any violations of fetal tissue laws. Id.
Notwithstanding, at a rally at the State Capitol on August 19, 2015, Governor
Herbert announced, “I’m here today to add my voice to yours and speak out on the
sanctity of life.” Galloway Decl., Ex. 3 (emphasis added). The Governor’s “Rally
Remarks” memorandum, prepared in anticipation of the August 19, 2015 rally,
underscores this emphasis on abortion and the right to life. See Parrish Decl., Ex. 18.
The “theme” of the Governor’s remarks was “Standing up for the right to life,” and the
“objective” of his remarks was described as:
Emphasize your support for life and the law, which
prohibits using taxpayer money to pay for abortions. The
decision for the state not to act as a pass-through for
federal funds to Planned Parenthood was based on
those considerations. Reaffirm your commitment to
fight for the “Right to Life.
Id. (emphasis added). See id. Describing Planned Parenthood as a group that does
not have “that same respect for human life,” he states that his
action sends a strong message to Planned Parenthood
and the rest of the nation that the state of Utah values the
sacred nature of human life. Utah should not, and must
not, be in the business of supporting an organization

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that does not share that same basic respect. As your
governor, I will continue to do everything in my power to
protect this right to life.
Id. (emphasis added).
On September 28, 2015, after this lawsuit was filed, the Governor stated he
“stands by his actions to cease acting as a pass-through for federal funds to Planned
Parenthood [because] [h]e was offended by the actions of Planned Parenthood and
the callousness with which they discussed human life.” Parrish Decl., Ex. 19. The
following day, on September 29, 2015, after this Court issued its TRO, the Governor
again stated his intent to stand by his Directive. Id., Ex. 20.
The numerous state and federal agencies who have investigated the accusations
related to the CMP Videos have concluded that no illegal activity occurred. See id., Ex.
21 (“Planned Parenthood Probes Find No Wrongdoing, But The Damage Has Been
Done”). Even House Representative Jason Chaffetz, chairman of the House Oversight
Government Reform Committee, recently admitted that his investigation into Planned
Parenthood has turned up no evidence of wrongdoing. See id., Ex. 22 (“GOP Probe
Into Planned Parenthood Funding Comes Up Empty”). Notwithstanding, Republican
officials, including Governor Herbert, are continuing their efforts to defund Planned
Parenthood and its affiliates. See id., Ex. 21 (“If an organization is accused of a crime
but there's no evidence it committed that crime, should the organization still be punished
for its imaginary crime? The answer from Republicans is a resounding yes -- at least if
the organization is Planned Parenthood.”).

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ARGUMENT
I.

PLAINTIFF NEED NOT PROVE EACH ELEMENT NECESSARY FOR
ISSUANCE OF A PRELIMINARY INJUNCTION “CLEARLY AND
UNEQUIVOCALLY”

While “the right to [injunctive] relief must be clear and unequivocal,” that does not
mean, as the State asserts, that PPAU must show each element clearly and
unequivocally. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001); see Opp’n at 1
(arguing that PPAU “bears the burden of showing that each element weighs clearly and
unequivocally in its favor”). Instead, the standard for showing a substantial likelihood of
success is relaxed where the movant has shown that the other three factors for
issuance of an injunction weigh decidedly in its favor, as PPAU has in this case. See
Flood v. ClearOne Communications, Inc., 618 F.3d 1110, 1117 n.1 (10th Cir. 2010).
Moreover, “[t]he requirement that a movant demonstrate that it has met its
burden by ‘clear and unequivocal’ proof . . . does not alter the preliminary injunction
requirement that a movant need only demonstrate a ‘substantial likelihood of success
on the merits,’ . . . and not ‘clear and unequivocal’ success on the merits.” Aid for
Women v. Foulston, 441 F.3d 1101, 1122 (10th Cir. 2006) (internal citations omitted;
emphasis added). PPAU is entitled to relief so long as it has raised “questions going to
the merits [] so serious, substantial, difficult, and doubtful as to make the issue ripe for
litigation.” Fed. Lands Legal Consortium v. U.S., 195 F.3d 1190, 1194-95 (10th Cir.
1999).

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In sum, because PPAU has shown that all four factors weigh decidedly in its
favor, it has established “clearly and unequivocally” its right to the injunctive relief it
seeks.
II.

PLAINTIFF IS LIKELY TO PREVAIL ON ITS CLAIMS
A.

PPAU’s Equal Protection Claim Is Likely to Succeed on the
Merits

The State argues that this Court cannot find a likelihood of success on the merits
of PPAU’s equal protection claim because the claim is barred by Engquist v. Oregon
Department of Agriculture, 552 U.S. 591 (2008). However, Engquist held only “the
class-of-one theory of equal protection has no application in the public employment
context.” Id. at 607. The Court did not hold that such claims are barred in cases
involving government contracts, as in this case. Moreover, the bases set forth in
Engquist for precluding class-of-one claims in the public employment context are
inapplicable to the facts of this case. Accordingly, PPAU’s equal protection claim is not
barred under Engquist and, as discussed herein and in PPAU’s previously-filed
memorandum, PPAU is likely to prevail on the merits of its equal protection claim.
1.

Class-of-One Equal Protection Claims Have Succeeded in
Cases with Similar Facts After Engquist

The State baldly – and inaccurately – asserts that “finding that Planned
Parenthood is likely to succeed on its class-of-one equal protection claim would require
the Court to become the first in the Nation to hold that a government contractor can
state a cognizable class-of-one equal protection claim despite the Supreme Court’s
holding in Engquist v. Oregon Dept. of Agric., 552 U.S. 591 (2008).” Opp’n at vii.

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Contrary to this assertion, however, at least two federal courts have recognized classof-one claims after Engquist in cases involving government contractors with facts nearly
identical to those presented here. See, e.g., Planned Parenthood Greater Memphis
Region v. Dreyzehner, 853 F. Supp. 2d 724 (M.D. Tenn. 2012); Planned Parenthood of
Central N.C. v. Cansler, 877 F. Supp. 2d 310 (M.D.N.C. 2012).
In Dreyzehner, for example, the United States District Court for the Middle
District of Tennessee granted a preliminary injunction in favor of the plaintiff, a Planned
Parenthood affiliate, concluding among other things that the plaintiff was likely to
succeed on the merits of its equal protection claim. As in this case, the plaintiff had
been for many years a recipient of federal grants to prevent and control the spread of
sexually-transmitted diseases and HIV until the Tennessee Department of Health
revoked plaintiff’s successful competitive bids for the federal grants at issue. See
Dreyzehner, 836 F. Supp. 2d at 728-731. Among other claims, the plaintiff asserted an
equal protection claim under a class-of-one theory. See id. at 736. Citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the court in Dreyzehner began its
analysis by stating that “[t]he Supreme court has ‘recognized successful equal
protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has
been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.’” Id. (quoting Olech, 528 U.S. at 564).
The court went on to conclude that the plaintiff’s equal protection claim was not
only valid, but that the plaintiff was likely to succeed on the merits of the claim. See id.
at 736-38. The court appropriately applied strict scrutiny in Dreyzehner because, as in

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this case, the state had “interfere[d] with [the plaintiff’s] exercise of fundamental
constitutional rights,” classifying the plaintiff according to its constitutionally-protected
exercise of its First Amendment and due process rights. Id. at 737. Assessing the
state’s action, the Dreyzehner court explained:
[T]he State lacked any legitimate reason for distinguishing Planned
Parenthood from the dozen or so similarly-situated service providers
whose contracts were approved. The Defendant has failed to offer any
rationale at all for its decision to terminate Planned Parenthood’s
contracts. Plaintiffs each have received grant money for their HIV
Prevention programs for over ten years with commendable performance in
providing grant-related services.
Id. at 737. The court further indicated that where, like here, the State offered no
explanation for its actions other than disagreements with Planned Parenthood’s
positions, “the Defendant acted with political motivation to defund Planned Parenthood
from a federal grant program funded by the federal government[,] [and] [t]he ‘desire to
harm a politically unpopular group’ does not constitute a legitimate governmental
interest.” Id. (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
Moreover, the court found that “Tennessee's concerted effort to defund Plaintiffs is
neither “narrow enough in scope [nor] grounded in a sufficient factual context for [the
court] to ascertain some relation between the classification and the purpose it serve[s],”
and that the ‘“sheer breadth [of the State's Action] is so discontinuous with the reasons
offered for it that [it] seems inexplicable by anything but animus toward the class it
affects.” Id. at 737-38 (alterations in original) (quoting Romer v. Evans, 517 U.S. 620,
632-33 (1996)).

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The plaintiff in Cansler likewise brought a successful, post-Engquist class-of-one
equal protection claim, in which the United States District Court for the Middle District of
North Carolina granted summary judgment and entered a permanent injunction in
plaintiff’s favor. See Cansler, 877 F. Supp. 2d at 327. In Cansler, another Planned
Parenthood affiliate sued the state Department of Health and Human Services to
challenge the validity of state legislation prohibiting the department “from providing state
or federal funds to Planned Parenthood, Inc. and its affiliated organizations, including
[the plaintiff].” Id. at 313. The legislation at issue excluded Planned Parenthood and
the local affiliate by name, thereby creating a class of one. See id. at 326. Because the
defendant had presented no evidence to show any rational relationship between
excluding the plaintiff from funds for “non-abortion-related projects” and any alleged
“legislative policy of funding childbirth over abortion services,” the Cansler court
concluded that the legislation violated the Equal Protection Clause as a matter of law.
Id. at 327.
The holdings in Dreyzehner and Cansler not only show that PPAU’s equal
protection claim is not barred by Engquist, but the facts in this case closely parallel the
material facts in Dreyzehner, further demonstrating the likelihood of success. Plaintiffs
in both cases are Planned Parenthood affiliates seeking pass-through federal funds
from their states’ respective departments of health. Both Planned Parenthood plaintiffs
received grant money for many years without incident, and with commendation. The
federal grant money passed-through by the states in both cases was revoked for no
reason associated with the plaintiffs’ qualifications or abilities to provide services, but

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instead for political reasons based on the plaintiffs’ exercise of their First and Fourteenth
Amendment rights, including their association with the National Organization.
Based on these substantial similarities, the Court in this case should also hold
that PPAU is likely to succeed on the merits of its equal protection claim. Moreover, like
the courts in Dreyzehner and Cansler, this Court should recognize that class-of-one
equal protection claims may be asserted by public contractors in circumstances such as
those presented here.
2.

Neither the Supreme Court Nor the Tenth Circuit Has
Extended Engquist to Cases Involving Government
Contractors

Not only have the foregoing courts allowed class-of-one claims in two similar,
post-Engquist cases, both of which involved Planned Parenthood affiliates like PPAU,
but neither the United States Supreme Court nor the Tenth Circuit Court of Appeals has
held that Engquist bars class-of-one equal protection claims asserted by government
contractors. This Court should also decline to do so.
The Supreme Court made clear in Engquist that its holding did not extend to
class-of-one cases other than those in the public employment context. See Engquist,
552 U.S. at 607 (“In concluding that the class-of-one theory of equal protection has no
application in the public employment context—and that is all we decide—we are
guided, as in the past, by the “common-sense realization that government offices could
not function if every employment decision became a constitutional matter.” (citation
omitted)). The Court specifically limited its holding in that regard, and it has not
revisited the issue since that time.

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Moreover, despite having the opportunity to do so, the Tenth Circuit has
expressly declined to extend Engquist to the context of government contractors. See
SECSYS, LLC v. Vigil, 666. F.3d 678, 690 (10th Cir. 2012) (“This case invites the
question, for example, whether class of one doctrine should apply at all in the
government contracting context. . . . But whether Engquist reaches this far we need not
decide today because even if class of one doctrine applies fully and vigorously in the
government contracting world, [the plaintiff’s] claim falls of its own weight.”); see also
Glover v. Mabrey, 384 Fed. Appx. 763, 778 (10th Cir. 2010) (“[W]e have not considered
Engquist in the public contractor context . . . . [and] [w]e need not decide this issue
today.”). Thus, the Tenth Circuit has not applied the Engquist beyond its holding, and
instead has only applied the case to preclude class-of-one claims in the public
employee context. See, e.g., Pignanelli v. Pueblo School Dist. No. 60, 540 F.3d 1213,
1221-22 (10th Cir. 2008) (holding that equal protection claim of part-time middle school
teacher whose contract was not renewed was barred under Engquist).
This Court should decline the State’s invitation to blaze a new trail and to extend
Engquist’s holding to cases involving government contractors.2

2

While the First and Eleventh Circuits have applied Engquist’s holding to
government contractors, see Caesars Mass. Mgmt. Co. v. Crosby, 778 F.3d 327 (1st
Cir. 2015); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008), the
Second and Seventh Circuits have expressly refused to hold that Engquist bars all
class-of-one claims involving discretionary State’s Action, see Analytical Diagnostics
Labs, Inc. v. Kusel, 626 F.3d 135, 142 (2d Cir. 2010); Hanes v. Zurick, 578 F.3d 491,
496 (7th Cir. 2009).

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3.

Engquist’s Rationale Does Not Apply Here, Nor Does It
Justify Extending Engquist Beyond its Core Holding

Even if the Court were inclined to extend Engquist into this new terrain, the
rationale underlying Engquist does not apply to the facts presented here and does not
support the extension of its holding beyond the unique context of government
employees. In Engquist, the Supreme Court relied heavily on the fact that employment
decisions “by their very nature involve discretionary decisionmaking based on a vast
array of subjective, individualized assessments,” including decisions that “rest[] on a
wide array of factors that are difficult to articulate and quantify.” 552 U.S. at 603, 604.
As the Court explained, quoting the plaintiff’s brief:
Unlike the zoning official, the public employer must often take into account
the individual personalities and interpersonal relationships of employees in
the workplace. The close relationship between the employer and
employee, and the varied needs and interests involved in the employment
context, mean that considerations such as concerns over personality
conflicts that would be unreasonable as grounds for “arm’s length”
government decisions . . . may well justify different treatment of a public
employee.
Id. at 604 (quotation marks and citation omitted). The Court also emphasized the
“crucial difference between the government exercising ‘the power to regulate or license,
as lawmaker,” and the government’s management of its internal operations. See id. at
598.
In this case, there is no contention that the State, by terminating PPAU’s passthrough funding, was making any subjective or individualized assessment based on the

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specific personalities, performance, or qualifications of particular employees.3 Nor was
the State exercising its authority in a manner to enable it to manage its internal affairs.
Instead, as the State concedes, the Governor reached out and commanded UDOH,
whose day-to-day operations and services are not managed or controlled by the
Governor, to cut all ties to PPAU. The evidence also shows that the Governor issued
his Directive despite the fact that UDOH previously had no intention of terminating
PPAU’s funding, and indeed would not have done so but for the Governor’s mandate.
UDOH consistently was pleased with the services provided by PPAU over the last two
decades, was planning to continue its relationship with PPAU, and had already
earmarked funds for PPAU years into the future. In short, the considerations driving the
Court’s holding in Engquist are not at play here.4

3

The State’s argument that it exercised the discretion provided in its contracts
with PPAU in order to carry out the Governor’s directive, and therefore did nothing
wrong, misses the point. The mechanism by which the State violates PPAU’s
constitutional rights is not material. The contractual rights were invoked for an
improper, unconstitutional purpose.
4

The facts of this case are also distinguishable from the government contractor
cases in other jurisdictions applying Engquist. For example, the State in this case is not
just acting as a proprietor of its own daily business, but is acting as an intermediary for
the federal government, and is thus carrying out the enactments and intent of the
federal government with respect to the federal funds at issue. Therefore, the State
contracted away the discretion it might otherwise have had when acting in its own
operational capacity to enter contracts with third parties. In addition, this case is
different because PPAU is a non-profit organization providing public health care
services to many of Utah’s citizens through federal funds; it is not a single employee or
for-profit commercial organization competing with other commercial organizations for
state government contracts or licensing. See Caesars Mass. Mgmt. Co. v. Crosby, 778
F.3d 327 (1st Cir. 2015) (for-profit casino applying for government license); Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008) (for-profit contractor
(continued...)

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The Engquist Court carefully distinguished its holding from Olech, in which the
Supreme Court for the first time expressly recognized the validity of “equal protection
claims brought by a ‘class of one.’” 538 U.S. 562, 564 (2000). More specifically, the
Engquist Court explained that the plaintiff in Olech was “singled out” based upon “a
clear standard against which departures, even for a single plaintiff, could be readily
assessed.” Engquist, 552 U.S. at 602 (emphasis added). Whereas the employment
decisions addressed in Engquist were “subjective and individualized,” Olech was readily
identifiable as the only property owner who was required to have a 33-foot easement as
a condition of connecting her property to the municipal water supply, when all other
similarly situated property owners were only required to have a 15-foot easement. Id. at
601. Therefore, unlike in Engquist, the departure in treatment for Olech, as opposed to
other property owners, could be readily and objectively assessed.
________________________
(...continued)

competing for state contract to pave highway); Snodgrass-King Pediatric Dental Assocs.
V. Dentaquest USA Insur., 79 F. Supp. 3d 753 (M.D. Tenn. 2015) (for-profit dental
services provider against administrator of state’s Medicaid program); Mountain
Cascade, Inc. v. City, No. C-13-03702 DMR, 2013 WL 6069010 (N.D. Cal. Nov. 18,
2013) (for-profit company providing steel pipe for public utilities contract); E. Amherst
Plumbing, Inc. v. Thompson, No. 12-CV-0195A, 2013 WL 5442263 (W.D.N.Y. Sept. 27,
2013) (for-profit plumber working on improvement to state university); NRP Holdings,
LLC v. City, No. 11-CV-472S, 2012 WL 2873899 (W.D.N.Y. July 12, 2012) (for-profit
developer of city housing project); Intralot, Inc. v. McCaffrey, No. 1:11-cv-08046, 2012
WL 4361451 (N.D. Ill. Sept. 21, 2012) (for-profit company competing in RFP process for
running the state lottery); Heusser v. Hale, 777 F. Supp. 2d 366 (D. Conn. 2011) (forprofit towing company taken out of city’s rotational towing list); Seymour’s Boatyard, Inc.
v. Town of Huntington, No. 08-CV-3248 (JG)(AKT), 2009 WL 1514610 (E.D.N.Y. June
1, 2009) (rescission by town of license agreement to for-profit company); Jav Auto Ctr.,
Inc. v. Behrens, No. 05 CIV. 6503(CS)(GAY), 2008 WL 9392107 (S.D.N.Y. Oct. 8,
2008) (for-profit towing company contract with state cancelled). Accordingly, the public
interest is more of an issue here than in the cases cited by the State.

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Here, as in Olech, the departure in treatment between PPAU and similarly
situated providers can be readily assessed, and there is no evidence that the State was
exercising its discretionary authority based on any subjective, individualized
determinations, or on factors that are difficult for the State to articulate and quantify. To
the contrary, the evidence shows that, if the State had based its decision on such
factors, PPAU’s funding would not have been terminated. PPAU’s services have
consistently been lauded by the State. As noted, the Governor’s reasons for
terminating all federal pass-through funding to PPAU is made clear by his own
statements: he is punishing PPAU – and PPAU only – for its association with the
National Organization. The Governor’s decision to single out PPAU for the categorical
denial of all federal pass-through funds, present or future, is unprecedented and marks
a clear departure from the way that all other applicants for and recipients of these funds
have been and are treated, as well as how PPAU has been treated in the past. This
departure from the norm is therefore “readily assessed,” like in Olech, and not inherently
subjective or individualized, like in the Engquist employment context.5 Id. at 602.

5

The Engquist court discussed the example of a traffic cop who has no way to
distinguish among many speeding drivers on the highway, and where the officer cannot,
as a practical matter, stop and ticket every speeding driver, explaining that “allowing an
equal protection claim on the ground that a ticket was given to one person and not
others, even if for no discernible or articulable reason, would be incompatible with the
discretion inherent in the challenged action.” Engquist, 552 U.S. at 604. 603. In
contrast, the Seventh Circuit in Hanes v. Zuck, in refusing to extend the holding in
Engquist to all discretionary State’s Action, compared the Engquist traffic cop to the
“officer that repeatedly arrests someone solely because of malice and does have a way
to distinguish between the citizen repeatedly arrested and the citizen left alone: the
officer hates the arrestee.” 578 F.3d 491, 496 (7th Cir. 2009) (emphasis added). In the
case of the officer motivated by malice alone, the Seventh Circuit concluded that the
(continued...)

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In sum, Plaintiff has proven that it is likely to succeed on the merits of its equal
protection claim. Meeting the likelihood of success factor on the equal protection claim
is sufficient to establish the right to the preliminary injunction order Plaintiff seeks.
However, as demonstrated below, Plaintiff is also likely to succeed on its other
constitutional claims.
4.

PPAU Has Identified Differently-Treated, Similarly Situated
Contractors

The State argues that PPAU is unlikely to prevail on the merits of its class-of-one
equal protection claim because it has not sufficiently identified similarly situated
contractors that have been treated differently from – or, in this case, more favorably
than PPAU. See Opp’n at 11. The State asserts in this regard that, to meet the
requisite standard, the contractors who have been treated dissimilarly must be “similarly
situated in all material respects.” See id. (quoting Kansas Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1217 (10th Cir. 2011)). This argument is not well taken.
________________________
(...continued)

officer “is not exercising discretion and is not weighing the factors relevant to the
officer’s duties to the public,” and the arrestee therefore would be justified in bringing a
claim as a class-of-one. See id.
Like the police officer in Hanes, Governor Herbert’s action is motivated by malice
against PPAU and abortion-related activities, and his Directive was not a proper
exercise of his executive discretion, including because he acted against PPAU before
performing any analysis on whether his action would be detrimental to the public.
Indeed, the documents produced by the State show that Governor Herbert did not
perform any type of analysis into whether the services at issue could be provided by
another entity until after his directive was issued. Therefore, Governor Herbert was not
acting with the type of discretion related to public duty contemplated by the Supreme
Court in Engquist, but was acting only out of his own political self-interest and his desire
to punish an organization with views antithetical to his own personal beliefs.

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First, PPAU need not show that the parties that have received disparate
treatment are the same in all respects; the standard requires only that such parties be
similarly situated in all material respects. See Kansas Penn Gaming, 656 F.3d at
1217. Here, the State concedes that disparate treatment has occurred, because it has
terminated no other contracts or funding for other qualified health care organizations,
including any organization that provides similar reproductive health services and
education. Further, there is no dispute that, but for the State’s Action, PPAU was and
remains eligible to receive federal pass-through funding, and in fact had received such
funding for approximately two decades, without incident or interruption, and all the while
receiving high praise for its services from the State. Accordingly, as in Cansler, the
“comparison group of those ‘similarly situated’ to Planned Parenthood encompasses all
other persons or entities that might be eligible for [state]-administered grants or
contracts.” Cansler, 877 F. Supp. 2d at 326; see also Dreyzehner, 853 F. Supp. 2d at
737 (identifying the appropriate group of comparators as “the dozen or so similarlysituated service providers whose contracts were approved”). This identification of the
contractors who are similarly situated to PPAU is more than sufficient to meet the
standard articulated in Kansas Penn Gaming.
Second, despite this readily-identifiable category of similarly-situated contractors,
the State insists that the only appropriate comparators to PPAU would be “federal grant
recipients . . . affiliated with organizations that Utah has an objectively reasonable basis
to believe may be violating federal law.” Opp’n at 13 (emphasis in original). Relying on
Kansas Penn Gaming, the State contends that the standard requiring “comparators be

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similarly situated in all material respects” is necessarily higher in instances where “a
difference in treatment could legitimately be based on a number of different factors,”
including “where the government actor enjoys a broader range of discretion, and may
properly base a decision on a myriad of potentially relevant variables.” Kansas Penn
Gaming, 656 F.3d at 1217. In this case, however, the State has neither alleged nor
provided evidence of any variables or distinguishing factors between PPAU and other
providers of similar services; indeed, the State itself has identified the category of
similarly situated providers by maintaining that comparable, substitute services can be
provided by multiple other entities, and that it intends to redirect the funding that would
otherwise go to PPAU to those eligible entities. The evidence also shows that, as
between those entities eligible to receive pass-through funding, PPAU has consistently
provided and repeatedly been commended by the State for its provision of outstanding
health care and education services.
Finally, the state’s assertion that Governor Herbert has or had an “objectively
reasonable basis to believe [that Planned Parenthood] may be violating federal law” has
no support in the record. Instead, the record shows only that an openly anti-abortion
group created videos, which were questionably edited and may have otherwise been
doctored, and which numerous anti-abortion activists and politicians have cited as proof
that that Planned Parenthood affiliates in other states were profiting from the donation of
fetal tissue to scientific research. Despite these vehemently-adopted positions, the
evidence reveals that these accusations are unproven, and the only completed
investigations have concluded that no illegal activity occurred. The evidence also

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reveals that the State had information demonstrating the lack of proof to bear out the
accusations, but the State nevertheless went forward with its termination of all stateadministered funds to PPAU. Under the circumstances, the assertion that the Governor
had an “objectively reasonable basis” for his speculative belief that illegal activity
occurred is unsupportable.
Because PPAU – with the State’s assistance – has identified a group of similarlysituated contractors eligible to receive the same funding as PPAU, but which has not
been singled out for disparate treatment by the State, PPAU is likely to prevail on the
merits of its equal protection claim.
5.

The State’s Action Was Not Justified by Any Compelling
Interest or Rational Basis

According to the State, PPAU cannot establish that the manner in which the
State differentiated between PPAU and other, similarly situated contractors “‘was
without rational basis, that is, the government action was irrational and abusive and
wholly unrelated to any legitimate state activity.’” Opp’n at 14 (quoting Kansas Penn
Gaming, 656 F.3d at 1216).
However, in cases like this one, which involve equal protection claims based on
governmental interference with the exercise of fundamental rights, the applicable
standard is strict scrutiny. See Dreyzehner, 853 F. Supp. 2d at 737 (“Where, as here,
the State interferes with a person’s exercise of fundamental constitutional rights the
Equal Protection Clause applies the strict scrutiny standard.”); see also Dubay v. Wells,
506 F.3d 422, 429 (6th Cir. 2007) (“[C]lassifications affecting fundamental rights ‘are
given the most exacting scrutiny.’”). This standard requires “the State to demonstrate

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that its classification has been precisely tailored to serve a compelling governmental
interest.” Kitchen v. Herbert, 755 F.3d 1193, 1218 (10th Cir. 2014) (quoting Reno v.
Flores, 507 U.S. 292, 302 (1993)).
In this case, PPAU has satisfied both the rational basis and the strict scrutiny
standards, because the State has provided no rational basis for its action, let alone any
“compelling state interest” at which its action takes aim. As in Cansler and as discussed
in the Statement of Facts and infra at Section II.B, the Governor has singled out PPAU
solely on the basis of its “status as a pro choice organization.” Cansler, 877 F. Supp. 2d
at 326. In other words, the State’s Action treats PPAU differently from similarly situated
reproductive health care providers solely on the basis of its membership in a class of
providers who advocate for and provide legal abortion services, which is a classification
that violates PPAU’s constitutional rights. Thus, the evidence demonstrates that the
State took action against PPAU based solely on its divergent political views and related
protected activities, and not to further any legitimate or compelling state interest.
Relying on a single phrase within a single sentence in Umbehr, which is
delivered without further explication or example,6 the only “interest” articulated by the

6

In Umbehr, the Supreme Court stated generally, in dicta, that “[t]he
government needs to be free to terminate both employees and contractors for poor
performance, to improve the efficiency, efficacy, and responsiveness of the service to
the public, and to prevent the appearance of corruption.” Uhmbehr, 518 U.S. at 674.
The Court did not explain what it meant by an “appearance of corruption,” nor did it
provide any examples of what types of conduct fall in that category. The Court’s
subsequent discussion of “patronage contracting” suggests it had in mind something
other than providing federal pass-through funding for reproductive health care and
education services. See id. at 680-684.

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State is its desire to prevent “the appearance of corruption.” Opp’n at 15. The State
apparently claims that an appearance of corruption could arise from continuing to
provide pass-through federal funding to “a local affiliate of a national entity alleged to be
engaged in . . . illegal activity.” Id. (emphasis added). However, the assertion that an
appearance of corruption could arise from the State’s provision of funding to PPAU,
which indisputably has not engaged in any illegal activity, and which is affiliated with
other entities that are only alleged to have been involved in illegal activities, is
speculative at best, and the State has offered no evidence to support it. Further, each
investigation into Planned Parenthood’s alleged sale of fetal tissue has concluded that
no illegal activity occurred. Thus, the State has improperly presumed guilt where none
appears to exist.
Finally, even if the State had any legitimate or compelling interest in “preventing
the appearance of corruption,” the state has failed to show how its termination of
funding will further or is narrowly tailored to address that interest. As noted, the
relationship between any funding decision involving PPAU and an “appearance of
corruption” on behalf of the State is tenuous at best, and terminating funding for PPAU’s
indisputably legal and well-managed programs is unlikely to redress any alleged
“appearance of corruption.” And, even if the State were to allege that it has an interest
in demonstrating its pro-life stance – a position it disavows in its brief, see Opp’n at 18,
but which the evidence proves is the Governor’s interest – the State has failed to show
how cutting off funding for non-abortion services is narrowly tailored to further that

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interest. See Planned Parenthood of Cent. Tex. v. Sanchez, 280 F. Supp. 2d 590, 609
(W.D. Tex. 2003).
In sum, PPAU’s motion for preliminary injunction should be granted because its
equal protection claim is meritorious and likely to succeed.
B.

PPAU Has Demonstrated a Likelihood of Success on the
Merits of Its Unconstitutional Conditions Claims

Defendants contend that the State’s Action does not impede PPAU’s First
Amendment or substantive due process rights because the action targets only its
affiliates’ alleged participation in illegal activity. See Opp’n at 17. According to
Defendants, because “the act of selling fetal tissue for money” is “not constitutionally
protected,” the State’s Action was not taken in retaliation for PPAU’s exercise of its
constitutional rights. Id. This characterization of the Governor’s motivations and the
conduct targeted by the State’s Action is not only unduly narrow but is also belied by the
Governor’s own statements, which unequivocally show that the State’s Action was
intended to and does impermissibly penalize PPAU for exercising its First and
Fourteenth Amendment rights under the United States Constitution.
The right penalized by the State’s Action is not the right to associate “in
furtherance of illegal acts such as selling fetal tissue,” as the State contends. Rather,
the State’s Action is aimed at (i) PPAU’s First Amendment right “to associate with others
in pursuit of a wide variety of political, social, economic, educational, religious, and
cultural ends,” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also
Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct. 2277, 2288 (2012) (“[T]he
ability of like-minded individuals to associate for the purpose of expressing commonly

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held views may not be curtailed.”); Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-48
(2000) (explaining that right of association “is crucial in preventing the majority from
imposing its views on groups that would rather express other, perhaps unpopular,
ideas”); (ii) its free speech right to “advocate for and provide abortion related services,”
Cansler, 887 F. Supp. 2d at 320 (citing Planned Parenthood Ass’n of Hidalgo County
Tex., Inc. v. Suehs, 828 F. Supp. 2d 872, 882 (W.D. Tex. 2012); accord Planned
Parenthood of Mid-Mo. & E. Kan. v. Dempsey, 167 F.3d 458, 463-64 (8th Cir. 1999));
and (iii) its Fourteenth Amendment right to “perform the services that are necessary to
enable women to exercise their own constitutional rights.” Sanchez, 280 F. Supp. 2d at
608 (cited in Cansler, 887 F. Supp. 2d at 319); cf. Planned Parenthood of Wis., Inc. v.
Van Hollen, 738 F.3d 786, 794 (recognizing abortion providers’ standing to sue to
vindicate “the rights of their patients”).7 Courts across the land have consistently
recognized that these rights are constitutionally protected, and the law is clear that the
unconstitutional conditions doctrine precludes the restriction of state contractors’ access
to government funding “in a manner that impedes [these] constitutional rights” absent a
compelling state interest. Cansler, 887 F. Supp. 2d at 320-21. Accordingly, contrary to
the State’s argument, PPAU has met its initial burden to show that the rights targeted by
the State’s Action are constitutionally protected.

7

As explained in Sanchez, “[t]his derivative right stems from the fact that, as
abortion providers who help women to realize their constitutional rights safely, the
Plaintiffs are in a unique position to assert their patients’ constitutional rights.” Sanchez,
280 F. Supp. at 608.

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The cases the State relies upon to support the proposition that not all speech by
government employees is constitutionally protected are inapposite. For example, in
Garcetti v. Ceballos, the question was whether a government employee engaged in
protective speech “made pursuant to the employee’s official duties.” Garcetti v.
Ceballos, 547 U.S. 410, 413 (2006). The employee in that case was a deputy district
attorney who had prepared a memorandum regarding possible misrepresentations in an
affidavit used to obtain a search warrant, and who subsequently was transferred to a
different courthouse and denied a promotion. See id. at 414-415. Assessing this
situation, the Court stated that the memorandum prepared by the employee was “part of
what he, as a calendar deputy, was employed to do,” and held that “when public
employees made statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate the communications from employer discipline.” Id. at 421. In this case, the
speech rights at issue do not involve any statements made pursuant to “official duties,”
and the rights at issue are not confined to freedom of speech but also include the rights
of association and due process.
Similarly, in Andersen v. McCotter, 100 F.3d 723 (10th Cir. 1996), the issue was
not whether the termination of a government contract impinged constitutional rights.
Instead, although the Tenth Circuit concluded that the government employee’s criticism
of the state’s proposed changes to its sex-offender treatment policy was speech on a
matter of public concern, the court remanded for a determination of whether the
employee’s “interest in expression outweighs the government’s interest in the efficiency

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of the public services it performs through its employees” under the Pickering balancing
test.8 Id. at 728-29.
However, in cases where the state engages “in an exercise of ‘raw political
power to penalize Plaintiffs for their activities and advocacy unrelated to these federal
grants and programs,” such as here, “the necessity of any balancing approach” is
obviated. Dreyzehner, 853 F. Supp. 2d at 735 (citing O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 719 (1996)). And, even assuming that a balancing analysis
were required, which it is not, in this case the State has failed to articulate any reason
other than PPAU’s “political association” to justify the termination, and the only evidence
shows that PPAU has delivered outstanding services under the contracts at issue for
decades. As such, there is no state interest to outweigh PPAU’s exercise of its
constitutional rights. See, e.g., Dreyzehner, 853 F. Supp. 2d at 736 (concluding that
state’s failure to state any reason for its decision to terminate funding in case where the
plaintiffs’ performance of programs utilizing Title X grant awards had “exceeded
expectations” showed that the action “were not to advance a State interest, but to
punish Plaintiffs for the exercise of their protected First Amendment right”).
The State further contends that, even if the rights at issue are constitutionally
protected – which they are – retaliating against PPAU’s exercise of those rights was not
a substantial or motivating factor for the State’s Action. While Defendants correctly
point out that unconstitutional conditions cases require an examination of “the
8

See generally Pickering v. Board of Ed. of Township High Sch. Dist. 205, 391
U.S. 563 (1968).

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[government] official’s motive for taking the action,” Planned Parenthood of Kan. & MidMo. v. Moser, 737 F.3d 814, 839 (10th Cir. 2014), Defendants have improperly sought
to circumscribe the Governor’s motivation for terminating PPAU’s pass-through funding
to his assertion that PPAU affiliates “colored outside the lines.”
This argument is contrary to the evidence. The Governor’s own documents and
public statements demonstrate that, regardless of his purported “outrage” at the video
footage, the true impulses for his termination of the PPAU contracts are his political
interests and his personal belief that abortion is improper. The anti-abortion group’s
doctored videos – which to date have failed to justify any accusation of illegal activity –
have simply provided the Governor and other outspoken opponents of abortion with an
excuse to defund Planned Parenthood as punishment for providing access to safe and
legal abortions.
The Governor’s issued statements regarding the termination of PPAU’s contracts
consistently reference abortion and the right to and sanctity of human life. For example,
in the Governor’s press release dated August 14, 2015, the Governor referenced the
prohibition on the use of both state and federal funds for abortions, and in that release
referenced only “ongoing concerns” about Planned Parenthood as the reasons for his
directive to cease providing pass through funding to PPAU. See Galloway Decl., Ex. 1.
In a subsequent press release, the Governor described the “callousness with which
[Planned Parenthood] discussed human life.” Parrish Decl., Ex. 19.
At a rally at the state Capitol on August 19, 2015, Governor Herbert announced,
“I’m here today to add my voice to yours and speak out on the sanctity of life.” See

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Galloway Decl., Ex. 3. The Governor’s “Rally Remarks” memorandum, prepared in
anticipation of the August 19, 2015 rally, underscores this emphasis on abortion and the
right to life. See Parrish Decl., Ex. 18. As noted above, the “theme” of the Governor’s
remarks was “Standing up for the right to life,” and the “objective” of his remarks was
described as follows:
“Emphasize your support for life and the law, which
prohibits using taxpayer money to pay for abortions. The
decision for the state not to act as a pass-through for
federal funds to Planned Parenthood was based on
those considerations. Reaffirm your commitment to
fight for the “Right to Life.”
Id. (emphasis added). The Governor’s remarks go on to specifically reference the
message his Directive was intended to send and to whom it was intended to be sent.
Characterizing Planned Parenthood as a group that does not have “that same respect
for human life,” he states that his
action sends a strong message to Planned Parenthood and
the rest of the nation that the state of Utah values the
sacred nature of human life. Utah should not, and must
not, be in the business of supporting an organization
that does not share that same basic respect. As your
governor, I will continue to do everything in my power to
protect this right to life.
Id. (emphasis added). As the Governor himself proclaimed, he issued his Directive to
send a message to Planned Parenthood and to “protect this right to life.” Id. The
accusations of illegal activity by PPAU affiliates merely provided a platform for him to
redouble his efforts in that regard.
The State’s argument that, because PPAU already engaged in abortion-related
activities prior to the Governor’s Directive, the motivation for the directive must have

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been something other than abortion, is also without merit. See Opp’n at 20. The
argument is not only contrary to the evidence regarding the Governor’s personal and
political motivations, but it is also illogical. The Governor’s purported reaction to
“allegations of illegal activity” does not preclude his simultaneous desire to further his
pro-life agenda and punish those who do not share the same agenda. Stated
otherwise, the Governor’s motivations, to the extent they are truly distinct from each
other, are not mutually exclusive but can and do coexist.
In addition, as the Court pointed out at the TRO hearing and the state conceded,
the accusations against Planned Parenthood do not involve PPAU, the Plaintiff in this
case, and the accusations are just that – no misconduct has been proven. See TRO
Hr’g Tr. at 30, Docket No. 13; see also TRO at 2 (referencing “accusations” of illegal
conduct), Docket No. 12. Indeed, the numerous state and federal agencies that have
investigated the accusations have concluded that no illegal activity occurred.9 See,
e.g., Parrish Decl., Ex. 21 (stating that investigations launched by states and in
Congress have “turned up no evidence that Planned Parenthood was doing anything
other than receiving legal reimbursements for the cost of processing the donations.”).
National media has likewise made the inference that, rather than being the reason for
defunding efforts, the videos have simply provided an excuse to take a stance against
abortion activities and punish those who provide abortion services. See id. (quoting
9

Even Jason Chaffetz, who extensively questioned the president of the National
Organization at a recent congressional hearing, has conceded that no investigation has
turned up any evidence of wrongdoing by Planned Parenthood. See Parrish Decl., Ex.
21.

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George Washington University professor who explained that the videos “gave
everybody the platform to work from that they had lacked up until now”). The State’s
own documents indicate that the State knew, within days of the Directive, that state
investigations and the Department of Health and Human Services had concluded that
Planned Parenthood had engaged in no illegal activity, but the Governor nonetheless
required the UDOH to implement his Directive. See Parrish Decl., Ex. 17. Punishing
PPAU for its association with entities that are only alleged to have engaged in illegal
activity (and not by any law enforcement body) does not pass constitutional muster.
Finally, the State has failed to show any rational basis, let alone any compelling
state interest, to justify its action. Even assuming the State had a compelling interest in
“removing the imprimatur of state funding of abortion services and safeguarding the
federal prohibition on the funding of abortion,” the State has failed to show how cutting
off funding for non-abortion services “is necessary to accomplish those interests.”
Sanchez, 280 F. Supp. at 609. Accordingly, the State’s Action penalizes PPAU for its
constitutionally-protected pro-choice advocacy, its provision of abortion services, and its
association with Planned Parenthood generally. The State’s Action is therefore
prohibited under the unconstitutional conditions doctrine, and PPAU is likely to prevail
on its First and Fourteenth Amendment claims.
III.

PLAINTIFF AND ITS PATIENTS WILL SUFFER IRREPARABLE HARM
IN THE ABSENCE OF AN INJUNCTION

The State concedes, as it must, that if Plaintiff has established a likelihood of
success on the merits of any one of its constitutional claims, then Plaintiff has
established irreparable harm as a matter of law. See Opp’n at 21. See Elrod v. Burns,

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427 U.S. 347, 373 (1976) (“loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury”); see also Kikumura v. Hurley, 242
F.3d 950, 963 (10th Cir. 2001) (“When an alleged constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”); Pub. Serv. Co.
of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (infringement of free
speech, association, privacy or other constitutional rights, even temporarily, amounts to
an irreparable harm.).
As demonstrated above in Section II, Plaintiff has shown it is likely to succeed on
the merits of its three constitutional claims. Because establishing a likelihood of
success on just one of these claims is sufficient to meet the irreparable harm factor as a
matter of law, this Court need not find any further harm.
Still, PPAU has shown that it will suffer other forms of irreparable harm if a
preliminary injunction is not entered by the Court, including that the State’s Action
threatens to harm PPAU’s ability to prevent unwanted pregnancies, and its ability to
prevent high-risk populations in Utah from acquiring and/or spreading potentially-life
threatening STDs. However, the State claims that these irreparable injuries resulting to
the public health and welfare are not sufficient for this Court to intervene because they
are “too speculative,” because the injuries are to PPAU’s patients and not to PPAU,
and because other vendors will provide the services at issue. These arguments are not
well taken.
In the first instance, these harms are not speculative because they are supported
by the uncontroverted evidence provided in the Galloway Declaration. In addition, the

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State’s own documents show that UDOH “really [doesn’t] have good alternatives for
some of the services PP is providing,” and “abruptly terminating [PPAU’s funds] will
harm people of Utah” – in a way that “isn’t acceptable.” Parrish Decl., Ex. 8. Numerous
documents produced by the State demonstrate that, while the Governor would like to
claim that other vendors can simply step in for PPAU, this is not the reality. Both the
evidence in the Galloway Declaration and the State’s own documents show that other
service providers are not in the position to provide the services for the programs
affected by Governor Herbert’s Directive, or at least cannot provide those services in a
timely fashion, at no cost, and/or in the same, successful way as the services are
currently being provided by PPAU. Indeed, the State’s documents show that, contrary
to the Governor’s public statements, the money for some of the programs at issue will
no longer be available to the State if it does not go to PPAU. See, e.g., id. Ex. 12. The
Governor did not assess or determine whether any state or local agencies or non-profits
could replace these services before issuing his Directive, and the evidence is that
UDOH has still not figured out what to do. This evidence shows that no seamless
transition to readily available replacement services will occur, and the loss of services –
especially to the uninsured, underinsured, and high risk population in Utah – will result
in serious, irreparable harm.
The fact these injuries will also affect PPAU’s patients directly does not mean
that they are not also harms to PPAU itself. PPAU is a non-profit that provides
reproductive health services and education in Utah, particularly to the underserved,
poor, and high-risk populations. If PPAU cannot successfully carry out its mission by

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serving the health care needs of its patients, the very purpose for its existence is
destroyed, resulting in the worst imaginable type of irreparable harm to the organization.
Again, this is not the type of injury that can be later compensated, as PPAU cannot go
back in time to prevent its patients from suffering the serious, long-term health
consequences from their inability to access PPAU’s health care and education services
at the time they are needed, which time is now.
Finally, the State’s argument that any reputational injury to PPAU can be
compensated with money also fails. The Governor is immune from any reputational
damage caused to PPAU by his statements. And even if this were not the case,
reputational injury is a classic type of irreparable harm, because such injuries “are often
difficult to quantify.” In re BRCA1-, BRCA2-Based Hereditary Cancer Test Patent Litig.,
3 F. Supp. 3d 1213, 1249 (D. Utah 2014). The fact that people supporting PPAU have
sent messages to the Governor does not mean that the State’s Action is not causing
harm to PPAU’s reputation in the community at large. The Galloway Declaration, which
the State has not controverted, provides evidence of the reputational injury to PPAU
from the Governor’s actions, which send a message to the community that PPAU is a
criminal, and deserving of punishment, when in reality PPAU has done nothing wrong.
The irreparable harm factor weighs decidedly in PPAU’s favor because the
deprivation of its constitutional rights, the injury to its ability to serve its patients, and the
harm to its reputation are not compensable by damages.

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IV.

THE THREATENED INJURY TO PLAINTIFF FAR OUTWEIGHS ANY
INJURY TO THE STATE

The State argues that it will suffer harm if it is prevented from effectuating the will
of the people. Opp’n at 24. However, the authorities relied on by the State do not apply
here, where only a single, elected official is being prevented from furthering his own
personal and political agenda.
Even if there were any legitimate State interest in the Governor’s effort to carry
out his own personal and political interests, that interest would not outweigh the
irreparable harm caused by the constitutional violations in this case. In fact, maintaining
the status quo during the pendency of this action will simply mean, for the State, that the
less fortunate and high-risk members of Utah’s population will continue to receive the
necessary reproductive health care services and education that PPAU has been
providing for decades with federal pass-through funds with no complaint and only
commendation from the UDOH.
V.

THE INJUNCTION WILL PROMOTE THE PUBLIC INTEREST

The State argues that the public will not be harmed by the Governor’s Directive
because PPAU will continue to provide the impacted services, regardless of whether it
receives federal funding through UDOH. The State’s argument is without merit.
The totality of the private donations PPAU receives compared to the amount of
federal funding lost is not the proper lens through which to view the public interest, nor
do general public statements of optimism show that the public interest will remain
unscathed. The reality is that PPAU is a non-profit organization that will be financially
impacted by the loss of the approximately $272,000 it receives in federal pass-through

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funding annually. Every dollar lost in federal funding is a dollar less available to provide
services to the public through PPAU’s budget. There is no argument around that reality.
The funds at issue were planned for and allocated to particular services and programs –
PPAU does not have a pot of gold it can tap to suddenly replace the lost funds. While
there are private donations, those donations have already been accounted for and
allocated to other programs. If money is taken from those other programs, then the
other programs will suffer, and so will the members of the public served by those
programs. Of course, there is also no guarantee that PPAU will receive future private
donations, let alone in an amount sufficient to replace the lost funds, particularly given
the State’s Action.
In addition, the uncontroverted evidence shows that the services PPAU provides
using the federal pass-through funding are not services for which UDOH has found
alternative providers, and, in some cases, those services cannot be provided by others.
The Governor’s repeated statements that he intends to redistribute the PPAU funds
and substitute in other vendors is not evidence that it will happen, particularly given the
record before the Court.
The evidence further shows implementation of the Governor’s Directive would
harm the State itself. Those harms include financial harm to the State, including as a
result of losing annual revenue of approximately $240,000 to the Utah Public Health
Laboratory from the loss of PPAU’s targeted STD testing, see Parrish Decl., Ex. 5; the
loss of accurate and timely patient data related to pregnancy and treatment for STDs,
the increased workload placed upon local health department disease intervention staff

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without the State’s partnership with PPAU, id., Ex. 2; and potentially risking the State’s
future ability to receive grants from the federal government for services like the
Abstinence Education and PREP Programs, and STD, HIV, and hepatitis education.
Id., Ex. 8.
Based on the record before the Court, the public interest factor weighs decidedly
in PPAU’s favor, and the status quo should be preserved.
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiff’s motion for a
preliminary injunction order.
DATED this 13th day of October, 2015.
MAGLEBY & GREENWOOD, P.C.

Peggy A. Tomsic
Christine T. Greenwood
Jennifer Fraser Parrish
Attorneys for Plaintiff Planned Parenthood
Association of Utah

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CERTIFICATE OF SERVICE
I hereby certify that I am employed by the law firm of MAGLEBY & GREENWOOD,
P.C., 170 South Main Street, Suite 1100, Salt Lake City, Utah 84101, and that pursuant
to Rule 5(b), Federal Rules of Civil Procedure, a true and correct copy of the foregoing
REPLY IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION ORDER was
electronically filed with the Court’s CM/ECF System, and therefore also served upon the
following, this 13th day of October, 2015:
TYLER R. GREEN (10660)
Utah Solicitor General
PARKER DOUGLAS (8924)
Utah Federal Solicitor
STANFORD E. PURSER (13440)
Deputy Solicitor General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 N. State Street, Ste. 230
Salt Lake City, Utah 84114
Telephone: (801) 538-1191
Counsel for Defendants

32